Beyond reparations: Justice as indigenism

Human Rights Review

Volumn 6, Issue 3, 2005, Pages 5-79

  Bradford, William ^a  

^a NONE

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EID: 34248041230     PISSN: 15248879     EISSN: 18746306     Source Type: Journal    
DOI: 10.1007/BF02862215     Document Type: Article

References (368)

1. ChificahuaApache and Professor of Law, Indiana University School of Law, Indianapolis, Indiana.
2. William Bradford, "With a Very Great Blame on Our Hearts": Reparations, Reconciliation, and an American Indian Plea for Peace with Justice, 27 AM. IND. L. REV. 1,5-9 (2002/2003) (chronicling the global history of reparations).
3. See Roy L. Brooks, ed., When Sorry Isn't Enough: The Controversy Over Apologies and Reparations for Human Injustice 1 (coining the phrase).
4. Reparations are a mode of redress "where a guilty party makes up for an injustice by paying or otherwise benefiting a victim" Samuel C. Wheeler, Reparations Reconstructed, 34 AM. PHIL. Q. 301 (1997)_
5. In 1942 all persons of Japanese ancestry resident in designated military exclusion zones in the Western U.S. were relocated to internment camps. See Korematsu v. United States, 323 U.S. 214,218,223 (1944) (upholding internment based on "the judgment of the military that there were disloyal members of [the Japanese American] population[.]"). In 1988 the Civil Liberties Act finally granted each individual who was relocated, interned, or deprived of property $20,000 and an apology from President Bush. Pub. L. No. 100-383,102 Stat. 903 (1988), 50 U.S.C. app 1989(b)--4(a)-(b) (1988 & Supp. V. 1993). 6. See Joint Resolution to Acknowledge the 100 m Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. 103-t50,107 Stat. 1510, 1514 (apologizing for the U.S. role in the forcible overthrow of the Hawaiian monarchy).
6. Richard Pyle, U.S. Commanders Told Troops to Shoot Korean Civilians, MILW. SENTINEL, Nov. 25,2001. 8. See Apologize but Don't Forget, AUSTIN AMERICAN-STATESMAN, May l 6, 1997 (African Americans denied medical treatment in syphilis study under federal auspices at Tuskegee Institute received compensation and presidential apology).
7. In 1923 the black community of Rosewood, Florida was immolated by white rioters with the consent of public officials. Martha Minow, Not Only for Myself. " Identity, Politics, and Law, 75 OR. L. REV. 667,680 (1996). In 1994 House Bill 591 compensated 9 survivors and created a scholarship fund for their descendants. Jeanne Bassett, House Bill 591: Florida Compensates Rosewood Victims and Their Families for a Seventy-One-Year-Old Injury, 22 FLA. ST. U. L. REV. 503 (1994).
8. A class of African American farmers recently settled a suit against the U.S. Department of Agriculture, alleging failure to investigate discriminatory lending practices. Emily Newburger, Breaking the Chain, HARV. L. BULL. (Summer 2001), at 19. 11. See Charles J. Ogletree, Jr., The Current Reparations Debate, 36 U.C. DAVIS L. REV. 1051 (2003) (discussing these suits). 12. See Alfred L. Brophy, Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. ANN. SURV. AM. L. 497,497 (2003) (coining "reparations talk" to refer to a broadening discourse on reparations for gross historical injustices). 13. See Eric A. Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 COL UM. L. REV. 689,692 (2003) (describing reparations as "backward-looking"). 14. See id. at 698-99 (contrasting theories of group rights, or "ethical collectivism, " with the theory of "ethical individualism" that treats only individuals as bearers or moral rights and duties). 15. See Vincene Verdun, if the Shoe Fits, Wear It: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597,643 (1993) (summarizing arguments denying that present African American economic deprivation is caused by slavery).
9. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
10. Critics of reparations are adamant in their defense of the sufficiency of existing civil rights laws. See, e.g. Tuneen Chisholm, Sweep Around Your Own Front Floor: Examining the Argument for Legislative African American Reparations, 147 U. PA. L. REV. 677,704 (1999) ("Most of my African American friends and advisors don't believe that we should get into what was essen-tially a press story about whether there should be an apology for slavery in America. " (quoting President Clinton).
11. Politics is a numbers game, and a white majority strongly disfavors reparations. Lee A. Harris, "Reparations" as a Dirty Word: The Norm Against Slavery Reparations, 33 U. MEMPHIS L. REV. 409 (2003).
12. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
13. See, e.g. Charles J. Ogletree, Jr., Reparations for the Children of Slaves: Litigating the Issues, 33 U. MEM. L. REV. 245,262 (2003) (explaining that the primary goal of reparative justice on behalf of the descendants of slaves is financial compensation). 21. See, e.g., Lee A. Harris, Political Autonomy as a Form of Reparations to African-Americans, 29 S.U.L. REV. 25 (2001) (positing an independent African-American state, rather than money, as the proper form for reparations in redress of slavery).
14. Fr a discussin f cntemporary African American reparatins thery see Nte Bridging the Color Line: The Power of African-American Reparations to Redirect America's Future, 115 HARV. L. REV. 1689 (2002).
15. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
16. Reconciliation, the primary paradigmatic challenger, "aim[s] to heal social wounds by bringing back into the community those wrongly excluded[.]" Eric K. Yamamoto, Susan K. Serrano, & Michelle N. Rodriguez, American Racial Justice on Trial--Again: African American Reparations, Human Rights, and the War on Terror, 101 MICH. L. REV. 1269, 1336 (2003). Although reconciliation may be augmented by compensation, its primary concerns are to encourage the dominant group to recognize moral responsibility, restore the dignity of the aggrieved minority group, and craft a more symmetrical distribution of economic, political, and legal power. Stephen P. Garvey, Punishment as Atonement, 46 UCLA L. REV. 1801 (1999).
17. See, e.g. Donald Laverdure, A Historical Braid of Inequality: An Indigenous Perspective of Brown v. Board of Education, WASHBURN L. REV. (2004, forthcoming) (suggesting that a "braid of inequality" suffered by both African American and Indian peoples could lead to a "red-black" interest convergence on questions of remediation of past injustices) (referencing Derrick Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980).
18. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
19. Indigenous peoples are "descen[dants] of the populations which inhabited [a] country., at the time of conquest or colonisation. " Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, art 1.1.b.
20. Indian, " "Indians, " and "Indian tribe(s)" denote the indigenous inhabitants of the U.S. in the singular, plural, and collective forms. James W. Zion & Robert Yazzie, Indigenous Law in North America in the Wake of Conquest, 20 B.C. INT'L & COME L. REV. 55, 55 (1996). "'Native American' is a ["politically correct"] term. [that] perpetuates colonial efforts to subordinate indigenous sovereignty to mere ethnicity[.]" Robert B. Porter, Strengthening Tribal Sovereignty Through Peacemaking: How the Anglo-American Legal Tradition Destroys Indigenous Societies, 28 COLUM. HUM. RTS. REV. 235,238 (1997).
21. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
22. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
23. Donald Juneau, The Light of Dead Stars, 11 AM. IND. L. REV. 1,8 (1983).
24. The international legal fiction of "discovery" bestowed occupancy and exclusive negotiating rights to impair the title of a "discovered" Indian nation upon a so-called discovering European nation. Although Europeans initially affirmed the collective rights of indigenous peoples, once European military superiority was established state sovereignty trumped claims to collective rights, and indigenous peoples were relegated to the status of minorities devoid of legal personality and entitled to protection only as individuals within states. See Lawrence Rosen, The Right to Be Different: Indigenous Peoples and the Quest for Unified Theory, 107 YALE L. J. 227,242. By fiat, discovery permitted colonizers to construct mutually exclusive spheres of influence, prevent internecine conflict, and enjoy sufficient time and space to survey, claim, and defend footholds in what became the U.S. See Johnson v. M'Intosh, 21 U.S. 543,573 (1823) ("[lit was necessary, in order to avoid., war[, to establish a principle, which aII sould acknowledge as the law by which the right of acquisition., should be regulated. This principle was, that discovery gave title to the government by. whose authority, it was made, against all other European governments[.]").
25. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
26. See SANDRA L. CADWALADER & VINE DELORIA, JR., EDS., THE AGGRESSIONS OF CIVILIZATION: FEDERAL INDIAN POLICY SINCE THE 1880s 190 (1994) (noting prenineteenth century Europeans would have been handily defeated).
27. See DAVID E. STANNARD, AMERICAN HOLOCAUST 55-146 (1992).
28. See Ibrahim Gassama, Transnational Critical Race Scholarship: Transcending Ethnic and National Chauvinism in the Era ofGlobalization, 5 MICH. J. RACE & L. 133,143 (1999) (applying to U.S.-Indian relations the euphemism "ethnic cleansing, " coined during Bosnian war to describe violent depopulation by one ethnic group of a territory populated by another).
29. See Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, 78 U.N.T.S. 277 ("Genocide Convention"), at art. II (defining genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group;. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
30. See James P. Sterba, Understanding Evil: American Slavery, the Holocaust, and the Conquest of the American Indian, 106 ETHICS 424,440 (1996) (stating that up to 94 million Indians died during conquest of the Americas and comparing this number with African American victims of slavery--up to 60 million--and the number of Jews killed in the Holocaust--6 million).
31. See JARED DIAMOND, GUNS, GERMS, AND STEEL: THE FATES OF HUMAN SOCIETIES (1999) (describing introduction of European diseases against which Indians had no immunities).
32. See Lenore A. Stiffarm & Phil Lane, Jr., The Demography of Native North America: A Question of American Indian Survival, in THE STATE OF NATIVE AMERICA 23, 26, 36 (M. Annette Jaimes ed., 1992).
33. See, e.g. MERRILL PETERSON, ED., THOMAS JEFFERSON: WRITINGS 1313 (1984) ("[E]xtermination of this race in our America is therefore to form an additional chapter in the history of the same colored man in Asia, and of the brethren of their own color in Ireland, and wherever else Anglo-mercantile cupidity can find a two-penny interest in deluging the earth with human blood. ") (reprinting personal letter of Thomas Jefferson, Nov. 6, 1813).
34. See REGINALD HORSMAN, RACEAND MANIEST DESTINY 6 (1981).
35. Of the many forcible relocations, the removal of the Cherokee Nation from ancestral homes in the Eastern Woodlands is perhaps the most infamous. With a federal statute explicitly overruling a contrary Supreme Court opinion, the entire Cherokee Nation was forced, in the dead of winter, on a 1000-mile "Trail of Tears" trek to Oklahoma. See Indian Removal Act of May 28, 1830, ch. 148, 4 Stat. 411 (overruling Cherokee Nation, 30 U.S. at 1) (holding Cherokee were entitled to retain possessory interest and to exercise reserved rights under treaties of peace). Gloating after passage of the Indian Removal Act, President Jackson reportedly remarked, "Marshall has made his decision, now let him enforce it. " FERGUS M. BOREWlCH, KILLING THE WHITE MAN'S BURDEN 46 (1996). More than 4,000 Cherokee died during the Trail of Tears. Id. at 47. 44. See id. at 44--45 (quoting Georgia Governor Wilson Lumpkin) ("Our government over that [Indian] territory[,] in order to be efficient, must partake largely of a military character, and consequently must be more or less arbitrary and oppressive[.]").
36. See Rennard Strickland, Genocide-at-Law: An Historic and Contemporary View of the Native American Experience, 34 KAN. L. REV. 713,718 (1986) (listing passage by State legislatures of resolutions legalizing murder of Indians).
37. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
38. Mathew Atkinson, Red Tape: How American Laws Ensnare Native American Lands, Resources, and People, 23 OK. CITY L. REV. 379,391 (1998).
39. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
40. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
41. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
42. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
43. Mathew Atkinson, Red Tape: How American Laws Ensnare Native American Lands, Resources, and People, 23 OK. CITY L. REV. 379,391 (1998).
44. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
45. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
46. Mathew Atkinson, Red Tape: How American Laws Ensnare Native American Lands, Resources, and People, 23 OK. CITY L. REV. 379,391 (1998).
47. See CHARLES M. HAAR & L. LANCE LIEBMAN, PROPERTY AND LAW 15 (1977) (quoting letter from Chief Joseph of the Nez Perce tribe to President Franklin Pierce) ("[T]he white man., is a stranger who comes in the night and takes from the land whatever he needs. The earth is not his brother but his enemy, and when he has conquered it he moves on. ").
48. See Gerald Tortes, Frontier of Legal Thought!II: Translating Yonnodio by Precedent and Evidence: The Mashpee Indian Case, 1990 DUKE L. J. 625,637-38 (1990) (noting inability of Indian tribes to understand Western property concepts). 60. See Nell Jessup Newton, Indian Claims in the Courts of the Conqueror, 41 AM. U. L. REV. 753 (1992) (suggesting language barriers and variant conceptions of relationship of people to land caused misunderstanding of legal nature of grants to whites).
49. STEPHEN PEVAR, THE RIGHTS OF INDIANS AND TRIBES 26 (1991).
50. Twentieth-century federal jurisprudence, in recognition of the fundamental unfairness prevailing during the creation of many Indian treaties, belatedly adopted canons of construction to guide interpretation of these instruments and mitigate the severity of their operation against Indian rights. As the U.S. is the party with presumptively superior negotiating skills and knowledge of the language of an Indian treaty, the Court has charged it with the responsibility to avoid taking advantage of Indians and has interpreted the terms of treaties liberally in favor of Indian parties. See, e.g., Minnesota v. Mille Lacs, 526 U.S. 172,200 (1999). Courts also give effect to the terms of an Indian treaty as the Indians themselves would have understood them at the time of their drafting. County of Oneida v. Oneida Indian Nation, 470 U.S. 226,246 (1985) (providing that "treaties should be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit. "). Ambiguities in Indian treaties are to be resolved "not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians[.]" Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n. 443 U.S. 658,675-76 (1979). Still, courts are "without authority to determine the fights of the parties upon the ground of mere justice and fairness, much less, under the guise of interpretation, to depart from the plain import of the words of the treaty. " United States v. Choctaw Nation, 179 U.S. 494,535 (1900).
51. See Patterson v. Meyerhofer, 204 N.Y. 96 (Ct. App. N.Y., 1912) (elaborating implied duty of good faith in contracting).
52. See, e.g., Employers Ins. Of Wausau v. United States, 764 F.2d 1572, 1576 (Fed. Cir. 1985) (providing that duress consists of the involuntary acceptance of terms of another party where circumstances permit of no other alternative and such circumstances were the result of coercive acts of the other party).
53. 21 U.S. at 543.
54. Joseph William Singer, Well-Settled? The Increasing Weight of History in American Indian Land Claims, 28 GA. L. REV. 481,489-90 (1994).
55. Joseph William Singer, Well-Settled? The Increasing Weight of History in American Indian Land Claims, 28 GA. L. REV. 481,489-90 (1994).
56. Joseph William Singer, Well-Settled? The Increasing Weight of History in American Indian Land Claims, 28 GA. L. REV. 481,489-90 (1994).
57. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
58. Cherokee, 30 U.S. at 17 (" Indians are acknowledged to have an unquestionable., right to the lands they occupy, until that right shall be extinguished by a voluntary cession" or by conquest).
59. Cherokee, 30 U.S. at 17 (" Indians are acknowledged to have an unquestionable., right to the lands they occupy, until that right shall be extinguished by a voluntary cession" or by conquest).
60. Cherokee, 30 U.S. at 17 (" Indians are acknowledged to have an unquestionable., right to the lands they occupy, until that right shall be extinguished by a voluntary cession" or by conquest).
61. Cherokee, 30 U.S. at 17 (" Indians are acknowledged to have an unquestionable., right to the lands they occupy, until that right shall be extinguished by a voluntary cession" or by conquest).
62. Cherokee, 30 U.S. at 17 (" Indians are acknowledged to have an unquestionable., right to the lands they occupy, until that right shall be extinguished by a voluntary cession" or by conquest).
63. Such fears proved well-founded when the Court explained the trust obligation as the duty to act as"a Christian people in their treatment of an ignorant and dependent race. " Beecher v. Wetherby, 95 U.S. 517,525 (1877). The "white man's burden" motivated federal Indian policy as actualized through the trust doctrine well into the twentieth century. See US. v. Sandoval, 231 U.S. 28, 39, 46 (1913) ("Always living in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and fetishism, and chiefly governed according to crude customs inherited from their ancestors, [Indians] are essentially a simple, uninformed, and inferior people. As a superior and civilized nation [the U.S. has] the power and the duty of exercising a foster care and protection over all dependent Indian communities within its borders[.]"
64. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
65. Over the past two centuries the trust doctrine has broadened to encompass a set of duties greater those pertaining strictly to land, including to "ensure the survival and welfare of Indian[s]" and to provide those services required to protect and enhance Indian resources and self-government and to "raise the standard of living and social well-being of the Indian people[.]" ROBERT N. WELLS, JR., NATIVE AMERICAN RESURGENCE AND RENEWAL 19 (1994).
66. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
67. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
68. The "plenary power" doctrine, with origins in medieval-era traditions of Christian cultural racism, was carried into the New World by Columbus, developed by successive European arrivals, and reified as moral imperative in U.S. jurisprudence to permit the "superior" race to exercise whatever power necessary to "civilize" indigenous peoples. DAVID GETCHES ET AL., CASES AND MATERIALS IN FEDERAL INDIAN LAW 177 (3d ed. 1993).
69. See American Indian Policy: Self-Governance And Economic Development 3 (Lyman H. Legters & Fremont J. Lyden eds., 1994) [hereinafter LEGTERS & LYDEN] (noting that subsequent to Kagama, Congress passed the first of more than 5000 laws regulating Indians).
70. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
71. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
72. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
73. Theretofore, Indian claims based on lineal descendancy and exclusive occupancy earned recognition, by treaty or statute, of a limited possessory right to permanent occupancy known as "recognized Indian title. " See M'lntosh, 21 U.S. at 543.
74. The Supremacy Clause establishes treaties as legal authority coequal to the Constitution itself. See U.S. CONST., art. VI, cl. 2 ("This Constitution, and the Laws. which shall be made in Pursuance thereof, and all Treaties made., under the authority of the United States, shall be the supreme Law of the Land[.]"). A violation of a treaty is therefore a violation of federal law unless Congress subsequently and unambiguously legislates to abrogate the treaty. Whitney v. Robertson, 124 U.S. 190, 194 (1888) (providing Congress may modify treaty provisions, or "supersede them altogether[,]" by subsequent statute). Although an Indian treaty thus binds all branches of government, Congress has plenary power to abrogate or otherwise limit it provided it does so explicitly and "with perfect good faith toward Indians, " which good faith is legally presumed. Lone Wolf, 187 U.S. at 553.
75. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
76. See Exparte Crow Dog, 109 U.S. 556,568 (1883) ("Congress. expected., the semi-barbarous condition of the Indian tribes [to] give way to the highest civilization of our race. ")
77. See Nell Jessup Newton, Compensation, Reparations, and Restitution: Indian Property Claims in the United States, 28 GA. L. REV. 453,461 (1994) (discussing expropriation of one billion acres of Indian land from 1865-1875).
78. The Court refuses to confine plenary power within the Due Process and Just Compensation Clauses, choosing abstention under the political question doctrine. See Lone Wolf, 187 U.S. at
79. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
80. See e.g. Hmestead Act of 862 (granting 25 miin acres f ndian and t setters at as itte as $1/acre).
81. Act of Mar. 3, 1871, ch. 120, 16 Stat. 544,566 (as amended at 25 U.S.C. w (1994).
82. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
83. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
84. JAMES LOPAC & RICHMOND CLOW, TRIBAL GOVERNMENT TODAY 20 (1990).
85. Kiowa Chief Lone Wolf sued unsuccessfully to prevent allotment of 2.5 million acres of tribal lands guaranteed by treaty against allotment without the signature of two-thirds of adult males. See Lone Wolf, 187 U.S. at 566 (providing that compensation for takings of Indian land need not be paid where Congress acts as a trustee in the "best interest" of Indian tribes despite violation of treaty) (abrogating Medicine Lodge Treaty, 15 Stat. 581,589 (1867).
86. See Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902) (upholding allotment of Indian land despite violation of treaties).
87. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
88. Frank Pommersheim, The Reservation as Place, 34 S.D.L. REV. 246,256,261 (1989).
89. More than half of the U.S. land mass was purchased at an average price of pennies per acre, while another 300 million acres were taken without compensation and another 700 million acres are claimed by the U.S. although it has taken no action to extinguish Indian title. See Russell Lawrence Barsh, Indian Land Claims Policy in the United States, 58 N.D.L. REV. 8-9 (1982). Moreover, all of "Indian Country, " a legal term-of-art for lands within the territorial limits of an Indian reservation, is now either trust land owned by the U.S. or non-trust land permanently Indian-occupied but subject to Congressional plenary power to restrict alienation and use. See 18 U.S.C.A. w (1994) (defining "Indian Country"). In sum, the U.S. owns superior title to all land within its borders, and efforts to reacquire Indian land are vigorously opposed by all levels of government.
90. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
91. United States v. Sioux Nation, 448 U.S. 371,416 (1980) (reiterating that nonconsensual transfers of Indian land to third parties are insulated from the Takings Clause of the Fifth Amendment provided the U.S. acts as tribal guardian, rather than as sovereign). Recently, several courts have mitigated the scope of plenary power marginally by requiring that the U.S. demonstrate a rational connection between a proposed legislative enactment and fulfillment of a "unique obligation toward the Indians" under the trust doctrine. See, e.g., Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977).
92. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
93. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
94. Ethnocide is "any act which has the aim or effect of depriving [indigenous people] of their ethnic characteristics or cultural identity [or] any form of forced assimilation or integration[.]" Discrimination Against Indigenous Peoples: First Revised Text of the Draft Universal Declaration on Rights of Indigenous People, at 6, P5, U.N. Doc. E/CN. 4/Sub. 2/1989/33 (1989).
95. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
96. The BIA is the executive agency responsible for U.S. relations with the tribes and for discharge of the trust responsibility.
97. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
98. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
99. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
100. See VINE DELORIA, CUSTER DIED FOR YOUR SINS 108 (1969).
101. Sidney L. Harring, Crow Dog's Case: A Chapter in the Legal History of Tribal Sovereignty, 14 AM. INDIAN L. REV. 191,229 (1940).
102. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
103. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
104. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
105. American Indian Religious Freedom Act, Pub. L. No. 95-341,92 Stat. 469 (1978) (codified in part at 42 U.S.C. w 1996 (1988) (declaring as grounds for protecting and preserving expression of Indian religions against infringement by state action that "the religious practices of the American Indian. are an integral part of their culture, tradition and heritage[.]").
106. American Indian Religious Freedom Act, Pub. L. No. 95-341,92 Stat. 469 (1978) (codified in part at 42 U.S.C. w 1996 (1988) (declaring as grounds for protecting and preserving expression of Indian religions against infringement by state action that "the religious practices of the American Indian. are an integral part of their culture, tradition and heritage[.]").
107. Racism and romanticism conspire to prevent protection of Indian religious freedom except when it is possible to cram Indian claims into the pigeonholes of the Bill of Rights and the Europeanderived values supporting notions of what religion should be--formal churches, a separation between church and state, and a hierarchical relationship between the deity and worshippers.
108. See Sharon O'Brien, A Legal Analysis of the American Indian Religious Freedom Act, in HANDBOOK OF AMERICAN INDIAN RELIGIOUS FREEDOM 27, 29-30 (Christopher Very, ed., 1995)].
109. Dean B. Suagee, Self-Determination for Indigenous Peoples at the Dawn of the Solar Age, 25 U. MICH. J.L. REF. 671,712 (1992).
110. Ken Traisman, Native Law: Law and Order Among Eighteenth-Century Cherokee, Great Plains, Central Prairie, and Woodland Indians, 9 AM. INDIAN L. REV. 273,274 (1981).
111. WILLIAM T. HAGAN, INDIAN POLICE AND JUDGES 11 (1966).
112. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
113. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
114. Crow Dog, 109 U.S. at 571.
115. Act of Mar. 3, 1885, Major Crimes Act of 1885, ch. 341,23 Stat. 362,385 (codified as amended at 18 U.S.C. w (1994) and expanded to 14 felonies from original 7). The Major Crimes Act subjects Indians charged with serious felonies to exclusive federal criminal jurisdiction regardless of the place of the alleged offense or the identity of the victim. 18 U.S.C. w 1153.
116. See, e.g., U.S.v. Kagama, 118 U.S. 375 (1886) (holding, in suit challenging Major Crimes Act as an unconstitutional extension of federal criminal jurisdiction over murder on an Indian reservation), that Congress has plenary power, immune from judicial review, to exercise authority over Indians as it sees fit, for their own "well-being").
117. Act of June 18.1934, ch. 576, 48 Slat. 984 (codified as amended at 25 U.S.C. w 1401 (b) (1994).
118. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, Pacific Philosophical Quarterly 81, 4, pp. 409-425.
119. See, e.g., U.S.v. Kagama, 118 U.S. 375 (1886) (holding, in suit challenging Major Crimes Act as an unconstitutional extension of federal criminal jurisdiction over murder on an Indian reservation), that Congress has plenary power, immune from judicial review, to exercise authority over Indians as it sees fit, for their own "well-being").
120. See, e.g., U.S.v. Kagama, 118 U.S. 375 (1886) (holding, in suit challenging Major Crimes Act as an unconstitutional extension of federal criminal jurisdiction over murder on an Indian reservation), that Congress has plenary power, immune from judicial review, to exercise authority over Indians as it sees fit, for their own "well-being").
121. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
122. See, e.g. Nancy A. Costello, Walking Together in a Good Way: Indian Peacemaker Courts in Michigan, 76 U. DET. MERCY L. REV. 875, 896 (1999) (stating that Navajo Tribal Courts were created to exclude State court jurisdiction).
123. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
124. Indian Civil Rights Act of 1968 ["ICRA'], Pub. L. No. 90-284, 82 Stat. 77 (codified as amended at 25 U.S.C. w16173 01-1303 (1994). ICRA limits tribal powers to define and punish offenses and imposes substantive due process provisions of Article III and the 4th, 5th, 6th, 7th, 8th, and 14th Amendments of the Constitution upon tribal governments. 25 U.S.C. w 1302 (1994).
125. Indian tribes were not subject to Constitutional restrictions prior to ICRA. See Talton v. Mayes, 163 U.S. 376 (1896) (holding that Indian tribes, as they are not States within the meaning of the U.S. Constitution, are not subject to its restrictions).
126. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
127. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
128. See 28 U.S.C.A. w (c) (requiring State courts exercising jurisdiction in Indian Country to apply tribal laws and customs only "if not inconsistent with any applicable civil law").
129. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
130. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
131. See Montana v. United States, 450 U.S. 544 (1981) (denying Indian tribes inherent civil jurisdiction regulate hunting and fishing by non-Indians on non-Indian-owned land within reservation).
132. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
133. See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (stating that the Commerce Clause divested States "of virtually all authority over Indian commerce and Indian tribes").
134. See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (stating that the Commerce Clause divested States "of virtually all authority over Indian commerce and Indian tribes").
135. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973) (providing that States may exercise jurisdiction over Indian tribes where the conduct of non-Indians is at issue, and tribal self-government will not be impeded).
136. Robert J. Williams, Encounters on the Frontier of International Human Rights Law: Redefining the Terms of Indigenous Peoples'Survival in the WorM, 1990 DUKE LJ. 660,662--65 (implicating federal Indian law in displacement of peoples, dissolution of tribal institutions, domination of legal systems, and disabling of land title and cultural practice).
137. Cherokee, 30 U.S. at 17 (" Indians are acknowledged to have an unquestionable., right to the lands they occupy, until that right shall be extinguished by a voluntary cession" or by conquest).
138. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
139. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
140. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
141. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
142. See ALVIN M. JOSEPHY, RED POWER: THE AMERICAN INDIAN'S FIGHT FOR FREEDOM 72 (1971) (quoting National Indian Youth Congress President Clyde Warrior in 1967 address) ("We are not allowed to make those basic human choices and decisions about our personal life and about the destiny of our communities. Our choices are made for u s. by federal administrators, bureaucrats, and their 'yes men,' euphemistically called tribal governments. ").
143. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
144. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
145. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
146. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
147. See Daniel Boxberger, Individualism or Tribalism? The "Dialectic" of Indian Policy, 15 AM. IND. Q. 29, 29 (1991) (noting "complex factors that have shaped tribal institutions. [as] dependent, internal colonies").
148. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
149. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
150. See 25 U.S.C.A. w167 & 483 (1994) (providing that an Indian individual or tribe who wishes to sell, convey, lease, or mortgage property in Indian Country for more than one year must first secure the permission of the Secretary of the Interior).
151. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
152. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
153. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
154. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
155. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
156. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
157. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
158. The full range of obligations owed under common law principles of fiduciary duty is broad. REST., (2nd), TRUSTS, w1167 0-72 (listing, inter alia, duties to exercise diligence and prudence, avoid conflict of interest, deal fairly, and assume liability for loss). A few limit U.S. management of the Indian trust. See, e.g., Cramer v. United States, 261 U.S. 219,229 (1923) (construing statute in light of trust doctrine to protect Indian right of occupancy).
159. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
160. Two centuries after Worcester the Supreme Court "'continues to permit the exercise of plenary power., where., broad discretionary powers are vital to the solution of the 'Indian problem.'" Robert A. Williams, The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Jurisprudence, 1986 WlS. L. REV. 319, 360.
161. The legal standard for abrogation of Indian treaties remains "plain and unambiguous" Congressional intent. County of Oneida v. Oneida Indian Nation, 470 U.S. 226,247-48 (1985).
162. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
163. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
164. Machinations within the so-called "iron triangle"--intedocking directorates of the Bureau of Reclamation, State officials, and corporate interests--have denied Indians the beneficial use of reserved water rights. See LLOYD BURTON, AMERICAN INDIAN WATER RIGHTS AND THE LIMITS OF THE LAW 23 (1991). For a discussion of this contested Indian right, see Taiawagi Helton, Indian Reserved Water Rights in the Dual-System State of Oklahoma, 33 TULSA L. J. 979 (1998).
165. Analysis of access to resources on lands ceded by treaty tracks closely with reserved rights in land not ceded, with explicit congressional intent the standard for abrogation. See Oregon Dept. offish and Wildlife v. Klamath Tribe, 473 U.S. 753 (termination of usufrnctuary rights requires express statutory language and cannot be inferred). 184. See Race Horse, 163 U.S. at 515 (holding Indian usufructuary rights are "temporary and precarious" privileges that do not survive admission of the State in which those rights are exercised into the Union).
166. Recent case law suggests that, while the standard for abrogation remains clear expression of congressional intent, legal protection of Indian reserved rights is backsliding. See, e.g., Western Shoshone Nat'l Council v. Moline, 951 F.2d 200 (9th Cir. 1991) (upholding ICC finding that Shoshone reserved rights to hunt and fish were extinguished "by gradual encroachment by whites").
167. See Mireya Maritza Pena Guzman, The Emerging System of International Protection of Indigenous Peoples "Rights, 9 ST. THOMAS L. REV. 251,257 (1996) (defining "ethnodevelopment" as autonomous economic activity comporting with religious and cultural requirements of equitability and intergenerational responsibility).
168. Indian gaming, though but one of the economic modalities that generate competition and conflict with States, is perhaps the most visible. See Naomi Mezey, The Distribution of Wealth, Sovereignty, and Culture Through Indian Gaming, 48 STAN. L. REV. 711,736 (1996) (noting that States may soon enter the gaming market as competitors).
169. See Treaty between the United States of America and the Makah Tribe of Indians, Jan. 31,1855, 12 Stat. 939,940.
170. See International Convention for the Regulation of Whaling, Dec. 2, 1946, Arg.-Austl.-Braz.-Can.-Ckile, etc., 161 U.N.T.S. 72, 62 Star. 1716 (1953) (prohibiting whaling listed species without a permit).
171. See Metcalfv. Daley, 214 F.3d 1135 (9th Cir. 2000) (interpreting U.S. executive action in support of Makah petition prior to completion of Environmental Assessment as violating timing requirements of NEPA). For a detailed discussion of the case, see William Bradford, "'Save the Whales" v. Save the Makah, 16 ST. THOMAS L. REV. 155 (2000).
172. See Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing Citizenship Upon Indigenous Peoples, 15 HARV. BLACKLE'Iq'ER J. 107,108--09 (1999) (discussing mechanisms whereby Indians became citizens prior to 1924, including assumption of"characteristics and mannerisms of a civilized person").
173. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
174. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
175. See Act of June 2, 1924, ch. 233,43 Stat. 253 (codi fled as carried forward at 8 U.S.C. w 1401 (b) (1988) ("Indian Citizenship Act") (granting citizenship to all non-citizen Indians "born within the territorial limits of the United States")
176. See Joseph William Singer, The Stranger Who Resides With You: Ironies of AsMn-American and American Indian Legal History, 40 B.C.L. REV. 171,174 (1998).
177. H.R. Con. Res. 108, 83rd Cong., 1 st Sess., 67 Stat. B 132 (Aug. 1, 1953) (enacted), repealed by 25 U.S.C. w (1988) (authorizing administrative and Congressional action to terminate tribes in California, Florida, New York, and Texas).
178. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
179. H.R. Con. Res. 108, 67 Stat. B132.
180. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
181. Act of Aug. 15, 1953, Pub. L. 280, No. 83-280, ch. 505, 67 Stat. 588 (codified as amended at scattered sections of 25 U.S.C.).
182. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
183. The "Indian problem" from the mid-20th century dominant perspective consisted of (1) continuing tribal sovereignty on land within U.S. borders and (2) social maladjustment experienced by Indians forced from reservations by Allotment and Termination.
184. Act of Aug. 3, 1956, Pub. L. No. 84-959, 70 Stat. 986 (1956) ("Relocation").
185. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
186. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
187. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
188. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
189. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
190. See Richard A. Monette, A New Federalism for Indian Tribes: The Relationship Between the United States and Tribes in Light of Our Federalism and Republican Democracy, 25 U. TOL. L. REV. 617,632 (1994) (elaborating theory of "compact federalist" incorporation of Indian nations within a constitutional relationship "approximating [that] between the [S]tates and the [U.S.]").
191. See Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing Citizenship Upon Indigenous Peoples, 15 HARV. BLACKLETrER J. 107,108-09 (1999) 166--68 (arguing that forcing Indians to accept U.S. citizenship, along with ongoing practices of forced relocation, qualify as genocidal acts).
192. VINE DELORIA, JR., ED., AMERICAN INDIAN POLICY IN THE TWENTIETH CENTURY 99 (1985).
193. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
194. Taken together, the trust doctrine, plenary power, and judicial subversion of reserved rights constitute a matrix of disability that refers Indian rights to property, culture, and self-government to interpretation by an oft-hostile non-Indian majority.
195. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
196. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
197. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
198. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
199. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
200. See, e.g., Solem v. Bartlett, 465 U.S. 463 (1984) (Marshall, J.) ("subsequent demographic history" is relevant to determining whether, with arrival of significant numbers of non-Indians upon Indian land, Indian rights in such land have been diminished).
201. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
202. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
203. See J. Angelo Corlett, Wrongdoing, Reparations, and Native Americans, 147,151, in INJUSTICE AND RECTIFICATION (Rodney C. Roberts ed. 2002).
204. See J. Angelo Corlett, Wrongdoing, Reparations, and Native Americans, 147,151, in INJUSTICE AND RECTIFICATION (Rodney C. Roberts ed. 2002).
205. See J. Angelo Corlett, Wrongdoing, Reparations, and Native Americans, 147,151, in INJUSTICE AND RECTIFICATION (Rodney C. Roberts ed. 2002).
206. See J. Angelo Corlett, Wrongdoing, Reparations, and Native Americans, 147,151, in INJUSTICE AND RECTIFICATION (Rodney C. Roberts ed. 2002).
207. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
208. See J. Angelo Corlett, Wrongdoing, Reparations, and Native Americans, 147,151, in INJUSTICE AND RECTIFICATION (Rodney C. Roberts ed. 2002).
209. See J. Angelo Corlett, Wrongdoing, Reparations, and Native Americans, 147,151, in INJUSTICE AND RECTIFICATION (Rodney C. Roberts ed. 2002).
210. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
211. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
212. Isaiah Berlin, Benjamin Disraeli, Karl Marx and the Search for Identity, in AGAINST THE CURRENT 252,257 (Henry Hardy ed. 1980).
213. Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. MICH. J.L. REF. 751,762,778 (1992).
214. Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. MICH. J.L. REF. 751,762,778 (1992).
215. Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. MICH. J.L. REF. 751,762,778 (1992).
216. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
217. See ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 152 (1974) (stating that justice in property entitlements can only be the result of just acquisition and just transfer or full compensation for unjust expropriation).
218. See, e.g. Ross Poole, Justice or Appropriation? Indigenous Claims and Liberal Theory, 101 RADICAL PHIL. 5, 7 (2000) (accepting the general obligation to restore lands or compensate former owners but mitigating this duty by noting that "there is no way in which indigenous people could have preserved their relationship to the land unchanged[,]" that "some sharing of land and resources was required[,]" and that "sometimes the needs of many count against the rights of the few. ").
219. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
220. Cherokee, 30 U.S. at 17 (" Indians are acknowledged to have an unquestionable., right to the lands they occupy, until that right shall be extinguished by a voluntary cession" or by conquest).
221. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
222. See, e.g. James Tully, Aboriginal Property and Western Theory. " Recovering a Middle Ground, 11 SOC. PHIL. & POL'Y 153,157 (1994) (advocating that indigenous property claims of be negotiated with, rather than unilaterally resolved by, states).
223. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
224. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
225. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
226. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
227. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
228. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
229. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
230. TRCs typically publish an open record or final report, and public hearings are often broadcast on national media. Jamie L. Wacks, A Proposal for Community-Based Racial Reconciliation in the United States Through Personal Stories, 7 VA. J. SOC. POL'Y & L. 195,207 (2000).
231. For some JAS theorists, TRCs are less central to justice and simply "reduce the number of lies that can be circulated unchallenged in public discourse. " MICHAEL IGNATIEFF, ARTICLES OF FAITH, INDEX ON CENSORSHIP 113 (1996).
232. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
233. Roy L. Brooks, Rehabilitative Reparations for the Judicial Process, 58 N.Y.U. ANN. SURV. AM. L. 475,476-77 (2003).
234. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
235. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
236. See Erin Daly, Reparations in South Africa: A Cautionary Tale, 33 U. MEM. L. REV. 367,403 (2003) (discussing legislative proposals to afford grants and tax relief as pragmatic means whereby to enhance the self-determination of South African blacks).
237. lndianrein is a corruption of Judenrein, a term used by Adolf Hitler and the Nazis to refer to territory purged of Jews. Simon Wiesenthal Center, Museum of Tolerance, available at http://motlc.wiesenthal.com/pages/t035/t03532.html.
238. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
239. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
240. See generally Ernest J. Weinrib, Corrective Justice, 77 IOWA L. REV. 403,421-24 (1992) (describing the capacity for compensatory remedies to accomplish moral instruction and correction).
241. The "incommensurability thesis holds that people cannot always value options along a common metric[,]" that policy options cannot always be reduced to evaluation in rational terms, and that not all goods will be exchanged by all persons or groups for money. ERIC A. POSNER, LAW AND SOCIAL NORMS 186-93 (2000).
242. See STEPHEN CORNELL, THE RETURN OF THE NATIVE 152-56 (1988) (surveying answers to the question "What do Indians want?" across a range of political, economic, social, and legal variables and finding a general consensus in favor of land restoration and some form of self-determination despite a diversity of opinions).
243. See, e.g. Jo Carrillo, Land Claims and Reparations, 51-60, at 54 in READINGS IN AMERICAN INDIAN LAW: RECALLING THE RHYTHM OF SURVIVAL (Jo Carrillo ed. 1997) (detailing sharp limitations on the compensatory regime established by ICC and noting how few tribes ever received compensation).
244. See Meredith Lee Bryant, Combating School Resegregation Through Housing: A Need for a Reconceptualization of American Democracy and the Rights it Protects, 13 HARV. BLACKLETrER L.J. 127,149-50 (1997) ("any attempt at putting a dollar figure on past racial harms often yields an amount too large or otherwise politically unfeasible. ").
245. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
246. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
247. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
248. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
249. See Emily Sherwin, Compensation and Revenge, 40 SAN DIEGO L. REV. 1387, 1389 (2003) (suggesting that when compensatory remedies are "pressed too far" they can begin to approximate revenge rather than "justice").
250. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
251. See WARD CHURCHILL, STRUGGLE FOR THE LAND 377 (2002) ("[E]very major Indian land recovery initiative., the Western Shoshone, those in Maine, the Black Hills, the Oneida claims in New York State are prime examples., has been met with a propaganda barrage from right-wing organizations ranging from the Ku Klux Klan to the John Birch Society[.]").
252. See PETER S. TEMES, THE JUST WAR 175-76 (2003) (warning of this risk in regard to the Palestinian-Israeli conflict).
253. See Martha Minow, Why Retry? Reviving Dormant Racial Justice Claims, 101 MICH. L. REV. 1133, 1139 (2003) (warning proponents of racial justice to be wary of proposals that demand the politically impossible, such as the restoration of Manhattan to Indian sovereignty nearly four centuries after its sale for unconscionably low consideration).
254. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
255. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
256. Events in the Balkans, Africa, Afghanistan, and elsewhere raise "radical questions about the legitimacy of law and the nature of legal order. " DAVID DYZENHAUS, ED., LAW AS POLITICS: CARL SCHMI'I'I"S CRITIQUE OF LIBERALISM 13 (1988). Indigenous peoples across the globe, burdened by legal precedents and doctrines that "perpetuate the injuries of a historical era now condemned and lamented" have added their voices to recent debates. See W. Michael Reisman, Protecting Indigenous Rights in International Adjudication, 89 AM. J. INT'L L. 350, 371 (1995). The basis for critical revision of U.S. law is no less compelling: doctrines given permanent place in the legal pantheon reduce tribes to mere wards under the trust of a fickle Congress with plenary power to terminate their legal existence. See M'lntosh, 21 U.S. 543 (establishing Indian tribes as diminished sovereigns).
257. See Robert A. Williams, Jr., Columbus'Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples'Rights of Self-Determination, 8 ARIZ. J. INT'L & COMP. L. 51 (1991) (detailing legal subordination of indigenous peoples).
258. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
259. See Tyron J. Sbeppard & Richard Nevins Cnstitutina Equality-Reparatins At Last 22 U. W L.A. L. REV. 105, 127-28 (1991) (noting that to obtain redress and prevent future harm it is necessary to "identify t h e., wrong" and "produce a report designed to influence the public., to accept the theory that statutes, ordinances, and other official actions [are] the source of the [harms.]").
260. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
261. See Kenneth Karst, Paths to Belonging: The Constitution and Cultural ldentity, 64 N.C.L. REV. 303,337--40,356 (1986) ("Unlike other American ethnic groups, Indians cannot rely on perpetuation of their tradition in a home country abroad. ").
262. See, e.g. Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L.L. REV. 323,358 (1997) ("Any discussion of law, its uses, and its limits in America presupposes the right of those engaged in the debate to stand on American soil and resolve the questions. Yet. [b]ecause the sovereignty of native people was never legitimately extinguished, any conclusions the rest of us may come to about law and social change are subject to the special priority of [Indians]. ").
263. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
264. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
265. See U.S. CONST., Preamble (1789).
266. The notion that democratic legitimacy and the treatment of Indians are linked is not new. See, e.g., Felix S. Cohen, The Erosion of Indian Rights, 1950-1953, 62 YALE L. J. 348,390 (1953) ("[O]ur treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith. ").
267. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
268. For too long, the American national myth has swept genocide, land theft, and ethnocide under the national rug. See Michael Schudson, Dynamics of Distortion in Collective Memory, in MEMORY DISTORTION: HOW MINDS, BRAINS, AND SOCIETIES RECONSTRUCT THE PAST 346 (Daniel Schacter ed., 1995) ("If you recall the [Indian Wars]. as part of the history of nation-building, it is one story.
269. Charles Wilkinson, To Feel the Summer in the Spring: The Treaty Fishing Rights of the Wisconsin Chippewa, 1991 WISC. L. REV. 375.
270. See Aviam Soifer, Objects in the Mirror Are Closer Than They Appear, 28 GA. L. REV. 533, 553 (1994) (labeling "failures of memory" that resulting in the discounting of Indian claims for redress "legal amnesia" and characterizing this process as an act of indeliberate injustice). Unconscious psychological processes shield individuals from the pain of awareness of past atrocities and prevent them from having to grapple with present obligations to provide redress. Martha Minow, The Work of re-Membering: After Genocide and Mass Atrocity, 23 FORDHAM INT'L L_I. 429,429 (1999).
271. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
272. For those unable or unwilling to testify publicly, testimony might be taken through deposition, affidavit, or by other means.
273. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
274. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
275. An apology need not address contemporary effects of past discrimination to initiate reconciliation.
276. E. Yarnamoto, Rethinking Alliances: Agency, Responsibility, and Interracial Justice, 3 ASIAN PAC. AM. LJ. 33,70 (1995).
277. Currently, a federal statute prevents recognition of Indian tribes as nations with whom the U.S. may contract by treaty. See Act of Mar. 3, 1871, ch. 120, 16 Stat. 544,566 (codified at 25 U.S.C. w (1994). Repeal of this statute--a demand of many Indian tribes--would revive the principle of mutual sovereignty and infuse negotiations with the ethics of mutual respect and consent so vital to the process of atonement, forgiveness, and reconciliation. See Vine Deloria, Jr., Reserving to Themselves: Treaties and the Powers of Indian Tribes, 38 ARIZ. L. REV. 963, 970-72,979-80 (1996) (arguing that the historical treaty process should serve as a template for a contemporary framework of U.S.-tribal negotiations between mutual sovereigns).
278. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
279. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
280. See Phyllis E. Bernard, Community and Conscience, The Dynamic Challenge of Lawyers' Ethics in Tribal Peacemaking, 27 U. TOL. L. REV. 821,835 (1996) (defining TPM as "any system of dispute resolution used within [an Indian] community which utilizes non-adversarial strategies. [and]. traditional or customary approaches" to "restor[e]. peace and harmony. ").
281. TPM recognizes no separation of religious and secular: supernatural power is directed to overcome disharmony and reestablish order. Philmer Bluehouse & James W. Zion, Hozhooji Naat'aanii: The Navajo Justice and Harmony Ceremony, 10 MEDIATtO.'q Q. 327,332 (1993).
282. See Dianne LeResche, Editor's Notes, Native American Perspectives on Peacemaking, 10 MEDIATION Q. 321,321 (1993).
283. ld. at 321-22. TPM is rarely used in disputes between members of different tribes. See Michael D. Lieder, Navajo Dispute Resolution and Promissory Obligations: Continuity and Change in The Largest Native American Nation, 18 AM. INDIAN L. REV. 1, 16 (1993) (noting that where outsiders are involved in disputes with members of Indian tribes, particularly where physical injuries are involved, the absence of common ties of kinship, religion, community, and ethos that drive the process of Indian dispute resolution tend to preclude the success of such an enterprise).
284. TPM is decidedly nonpunitive in its philosophical underpinnings: in contrast to state adjudication, no central authority can directly apply coercion to enforce the collective will. See Michael D. Lieder, Navajo Dispute Resolution and Promissory Obligations: Continuity and Change in The Largest Native American Nation, 18 AM. INDIAN L. REV. 1,17-18 (1993).
285. See Carole E. Goldberg, Overextended Borrowing: Tribal Peacemaking Applied in Non-Indian Disputes, 72 WASH. L. REV. 1003, 1015 (1997) (describing how, within the tightly interconnected tribe, the technique of shaming--calling down personal criticism upon one who deviates from group norms--can induce those who wish to remain accepted within the tribe to modify contrarian positions in order to bring themselves into a state of harmony with others).
286. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
287. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
288. The circle is sacred in many Indian religions as the circle of life, a "delicate thread that unites all living things. " Darla J. Mondou, Our Land is What Makes Us Who We Are: gimber Harvesting on Tribal Reservations After the NIFRMA, 21 AM. INDIAN L. REV. 259,259 91997). The path of life follows a circular progression and thus does not have a beginning and an end in linear time but is part of a journey connected to all other living things. Use of the circle in TPM expresses spiritual rootedness to all creation: every person sitting in the circle focuses upon the peacemaker who moves the dispute from the circumference to the center so all four quadrants (spiritual, emotional, physical, and intellectual) reenter balance and recomprise a united whole.
289. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
290. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
291. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
292. The value of memorials to the preservation of history and the attitudinal reform of citizens is inestimable. In 1881 the U.S. set aside land to honor U.S. soldiers of the 7th Cavalry who fell with Custer at the Battle of the Little Bighorn River in 1878. No mention was made of the Indian soldiers whose victory checked, even if for a short time, the advance of settlers into their lands. However, in 1991, the U.S. renamed Custer Battlefield as Little Bighorn Battlefield and hired an Indian as Superintendent, and in November 1999 groundbreaking for the Indian Memorial at Little Bighorn Battlefield National Monument. The Indian Memorial will include a "spirit gate" to welcome all the dead and, according to its designer, to "symbolize the mutual understanding of the infinite all the dead posses. " See Bert Gildart, Two Sides of Little Bighorn, MIL. HIST. (June 2001), at 27-28. According to curator Kitty Deernose, "Everyone feels more welcome now for the story includes comments from those who won rather than by just those who lost. Ironically, people from all ethnic groups seem to like that. " Id. Many more such memorials could dot the U.S. landscape: AIRC should recommend sites to Congress where memorials to other gross injustices can be created.
293. Critics might find in this an example of a "memorial fever" sweeping the nation and causing interest groups to "fiercely compete for space on the most hallowed memorial space in the nation[.]" Elaine Sciolino, Fighting For Space in Memorial Heaven, N.Y. TIMES, Jun. 28, 2001, at A18 (noting critics who claim that a "growing tendency to memorialize individual groups" and to "car[ve] the nation in ever-thinner slices of hyphenated Americans divides rather than unites the coun. tD'. ").
294. The National Holocaust Museum might serve as a model for a planned National Museum of the American Indian. See 20 U.S.C. w167 to 80q-15 ("National Museum of the Indian Act") (Supp. 1990). Exhibits might include original copies of U. S-Indian treaties along with subsequent histories and specific dates and circumstances of U.S. breaches. Histories of tribes, from first contact to dispossession and genocide to the present, could be preserved in rich detail. Names of Indian individuals murdered might be inscribed on a national register, and certificates could be issued to descendants of each victim commemorating the circumstances of their deaths. Indian curators with tribal cultural and historical knowledge would play an important role in the establishment and development of all aspects of the Museum, which is scheduled to open in fall 2004.
295. See Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice, 43 STAN. L. REV. 13 (1990) (discussing execution of Dakota warriors for defending their territories from invasion by the U.S. in violation of a treaty).
296. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
297. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
298. The harm suffered is inherently inestimable to peoples for whom ancestors, land, and culture are spiritually interwoven and constitutive of identity in a manner irreducible to comprehension by Western legal minds. Moreover, any proposed sum might stoke the perception of greed or suggest that the real motivation for redress is vindictive and goad the majority into backlash.
299. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
300. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
301. Timothy Egan, Backlash Growing as Indians Make a Stand for Sovereignty, N.Y. TIMES, Mar. 9, 1998, at AI. Not all non-Indians are opposed to land restoration: the City of Eureka, California recently deeded 40 acres upon which in 1860 a white mob massacred Wiyots back to the Wiyot Tribe to, in the words of the mayor, "reinven[t] history. " Massacre Site Given to Tribe, ASSOC. PRESS, Jun. 26, 2004.
302. Wik v. Queensland, 134 Australian Law Reports 637 (1996).
303. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
304. Because the prospect of wholesale evacuation of white landowners from Indian lands threatens the social peace, courts have been loathe to order ejectment to redress white encroachment on Indian lands. See Cayuga Indian Nation of New York v. Cuomo, 1999 WL 509442 (N.D.N.Y. 1999), 2001 WL 1182395 (2001) (refusing to order ejectment on grounds that the "public interest" would not be served by disrupting settled expectations of non-Indian improvers of land and "prov[ing] all too vividly the old axiom: "Two wrongs don't make a right").
305. County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985).
306. Attributed to Vladimir Lenin.
307. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
308. See, e.g., Banner, 238 F.3d at 1348 (holding that an "innocent improver" is generally entitled to the value of the improvements he mistakenly constructs on land to which another party is in fact entitled).
309. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
310. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
311. See, e.g., U.S.v. Percheman, 32 U.S. 51,54, 56 (1833) (Marshall, C.J.) (holding that at customary international law it was "very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign" and that "the whole civilized world would be outraged, if private property should b e. annulled" upon the change in sovereignty).
312. M'Intosh, 21 U.S. at 574 (holding that the private rights of Indians to hold and convey real property were "impaired" by the transfer of sovereignty to the U.S. through the discovery doctrine).
313. See, e.g. D.P. O'CONNELL, STATE SUCCESSION IN MUNICIPAL I. AW AND INTERNATIONAL LAW 101--41 (1967) (principles of customary international law presume that private law is undisturbed by a change in sovereignty).
314. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
315. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
316. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
317. See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (holding a State scheme to condemn private land titles and transfer them to private parties currently leasing same, where necessary to eliminate a dysfunctional land tenure regime and reestablish a functioning market, satisfied Fifth Amendment Public Use Clause).
318. See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (holding a State scheme to condemn private land titles and transfer them to private parties currently leasing same, where necessary to eliminate a dysfunctional land tenure regime and reestablish a functioning market, satisfied Fifth Amendment Public Use Clause).
319. See http://www.blm.gov/nhp (describing jurisdiction and missions of the Bureau of Land Management).
320. 42 U.S.C. w i 1411 (5) (Stuart B. McKinney Act) (1999).
321. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
322. See 64 Fed. Reg. 17,574--17,588 (April 12, 1999) (proposing modifications to, inter alia, limit discretionary power of federal agencies and officials, particularly with respect to the purposes for which such lands are acquired).
323. See ROBERT WARRIOR, LIKE A HURRICANE: THE INDIAN MOVEMENT FROM ALCATRAZ TO WOUNDED KNEE (1996) (describing early such discussions in late 1960s and 1970s).
324. See Carlos Scott Lopez, Reformulating Native Title in Mabo's Wake: Aboriginal Sovereignty and Reconciliation in Post-CentenaryAustralia, 11 TULSA J. COMP. & INT'LL. 21,79 (21) (describing a "joint sovereignty proposal" that would enable restoration of land to indigenous peoples without denying non-indigenous peoples some rights in restored lands).
325. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
326. Much of the land constituting the BC is ancestral territory of the Lakota, Pawnee, Arikara, Hidatsa, Crow, Shoshone, Assiniboine, Cheyenne, Araphao, Kiowa, Comanche, and Apache./d. at 384-85. In addition, the lands of the Blackfeet, Salish, Kutenai, Nez Perce, Yakima, Western Shoshone, Goshutes, Utes, Paiutes, Navajo, Hopi, Chiricahua Apache, Havasupi, Yavapai, and O'odham were never lawfully ceded to the U.S. 352. at 383
327. The Philippines, Brazil, Zimbabwe, Chile, South Africa, and other states have established land claims commissions to restore lands to indigenous peoples, and several have adopted constitutional amendments providing for compensation to current owners. See Shelby D. Green, Specific Relieffor Ancient Deprivations of Property, 36 AKRON L. REV. 245,248-49 (2003) (describing these mechanisms).
328. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
329. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49-52, U.N. Doc. A16316, 993 U.N.T.S. 3,6 I.L.M. 360 (1966), at Part I, Art. 1(1) ("All peoples have the fight t o. freely determine their political status [and]. development. ").
330. See, e.g. 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States ["Friendly Relations Declaration"], G.A. Res. 2625, 25 U.N. GAOR, 25th Sess. (adopted Oct. 24, 1970), Supp. No. 28, at 121,123 (charging states with duty to respect self-determination), reprinted in 9 I.L.M. 1292 (1970).
331. Paul H. Brietzke & Teresa L. Kline, The Law and Economics of Native American Casinos, 78 NEa. L. REV. 263,338 (1999) ("[U.S.] notions of sovereignty echo those prevailing in international law prior to World War II: you cannot be a little bit sovereign, and entities like Indian tribes are entitled to little legal respect because they are not recognized as states. ").
332. Reference re: Secession of Quebec, 2 S.C.R. 217, 37 I.L.M. 1340 (S. Ct. Can. 1998).
333. See RESTAT. (3rd), FOR. REL. L., w ("Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in or has the capacity to engage in international relations. ").
334. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
335. See William J. Clinton, Remarks to Indian and Alaskan Native Tribal Leaders, 30 WEEKLY COMP. PRES. DOC. 941,942 (May 9, 1994) ("This then is our first principle: respecting your values, your religions, your identity, and your sovereignty. ").
336. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
337. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
338. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
339. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
340. See Vine Deloria, Jr., & Clifford M. Lytle, The Future of Indian Nations, in THE NATIONS WITHIN: THE PAST AND FUTURE OFAMERICAN INDIAN SOVEREIGNTY 244--64 (Vine Deloria, Jr., ed., 1984) (proposing such a Court).
341. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
342. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
343. For an argument that reimagination of the trust doctrine "as an essential complement to the shared federal-Indian goal of self-determination" is possible within the framework of federal Indian law, see Raymond Cross, The Federal Trust Duty in an Age of Indian Self-Determination: An Epitaph for a Dying Doctrine, 39 TULSA L. REV. 369,373 (2003).
344. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
345. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
346. A UNESCO study indicates that fewer than 150 of the more than 500 Indian languages have survived in any form. See Virginia Fention, Study Warns 3,000 of World's Languages Could Go Silent, BOST. GLOBE, Feb. 21,2002, at A! 8.
347. See Daniel Farber, The Outmoded Debate Over Affirmative Action, 82 CAL. L. REV. 893,931-32 (1994) (suggesting that ethnic colleges play an important role as institutions of community enhancement and development).
348. The following clause might suffice: "The Congress of the United States (1) pledges to pass necessary legislation to permit Indian tribes and Indian people to reconstitute their political and economic institutions as they see fit without external interference as befits the right of foreign sovereigns and in keeping with their extensive human rights as indigenous peoples. "
349. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
350. See, e.g. CAN. CONST. (Constitution Act, 1982) sched. B. (Canadian Charter of Rights and Freedoms) (guaranteeing that interpretation of the Constitution does not abrogate or derogate from aboriginal rights).
351. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
352. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
353. See, e.g. Karl J. Irving, The United Nations and Democratic Intervention: Is "Swords into Ballot Boxes" Enough? DENV. J. INT'L L. & POL'Y 41, 69 (1996) (noting establishment under international law of ad hoc trust administrations under League of Nations and UN systems in, inter alia, Crete, China, South America, the Middle East, the South Pacific, Europe, and Africa).
354. See Stephanie Dean, Getting a Piece of the Action: Should the Federal Government Be Able to Tax Native American Gambling Revenue?, 32 COLOM. J. L. & SOC. PROB'S 157 (1999) (describing subjection of Indian gaming to veto through State compacting processes).
355. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
356. Richard Delgado, When a Story is Just a Story, 76 VA. L. REV. 95 (1990). As non-Indians possess the bulk of political power and legal reform is largely a democratic process, the fundamental question is "How much power over Indian people and governments are non-Indian people prepared to cede?"
357. See Ruth Gupta, Indigenous Peoples and the International Environmental Community: Accommodating Claims Through a Cooperative Legal Process, 74 N.Y.U.L. REV. 1741,1766 (1999) (noting even liberal states have been unable to resolve tension between majoritarianism and group rights of discrete and insular minorities).
358. Critics of JAI may excoriate the call for legal reform as a "result-oriented modification of legal doctrine" that would "deconstruc[t] neutral principles" to exempt minorities "from the ordinary application of the laws. " Jeffrey J. Pyle, Race, Equality and the Rule of Law: Critical Race Theory's Attack on the Promises of Liberalism, 40 B.C.L. REV. 787,803 (1999). Talismanic fixation on a facially neutral legal order stymies reform on behalf of indigenous groups worldwide. See, e.g., New President Submits Bill in Indian Rights, BOST. GLOBE, Dec. 6, 2000, at A16 (outlining etiology of legislative stalemate in Mexico over Indian rights bill). Moreover, such critics would ignore the fact that Indians have long been regarded as sui generis under federal law. See, e.g., Worcester, 31 U.S. at 515.
359. See Marg Huber, Mediation Around the Medicine Wheel, 10 MEDIATION Q. 355 (1993) (offering traditional Indian medicine wheel ceremony as a model for contemporary intergroup peacemaking).
360. The concept of interdependence between nations is well-developed in international relations theory. See ROBERT O. KEOHANE & JOSEPH S. NYE, POWER AND INTERDEPENDENCE (1989) (defining "interdependence" as a condition where the reciprocal effects of transactions across political boundaries constrain choices). Similarly, it is a cardinal tenet of liberal political theory that institutionalization of democratic principles enhances social stability and economic development, See, e.g., UNESCO, Report of the International Panel on Democracy and Development, Boutros Boutros-Ghali, Chair, Dec. 16, 2002 (linking economic development with democracy), http://www.unesco.org/en/ev.php.
361. See FOREST MARTIN et al., INTERNATIONAL HUMAN RIGHTS LAW & PRACTICE 1076 (1997) (linking failure to grant redress with political instability).
362. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
363. Robert Mesiter, Forgiving and Forgetting: Lincoln and the Politics of National Recovery, in HUMAN RIGHTS IN POLITICAL TRANSITIONS: GETTYSBURG TO BOSNIA 137 (Carla Hesse & Robert Post eds., 1999).
364. Michael Soldatinko, "How Chicano Studies joined the Curriculum" in Eric Margolis, ed. The Hidden Curriclulum in Higher Education (Routledge, 2001).
365. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
366. Martinich argues that no one actually holds a "fully comprehensive doctrine. " See Martinich, A. R (2000) "Religion, Fanaticism, and Liberalism, " Pacific Philosophical Quarterly 81, 4, pp. 409-425.
367. Felix S. Cohen, Original Indian Title, 32 MINN. L. REV. 28, 43 (1947).
368. The character Lone Watie, played by the Indian actor Chief Dan George in the 1976 film The Outlaw Josey Wales, relates to Josey Wales (Clint Eastwood) his visit circa 1850 to Washington, D.C., where Lone Watie met with the Secretary of the Interior. Upon telling the Secretary that his tribe's land had been stolen by the U.S., Lone Watie is advised by the Secretary to "vow to endeavor to persevere. " After a pause, l_xme Watie tells Josey Wales that "[a]nd when we had thought about it long enough, we declared war on the Union. "